Submission to the Alberta College of Pharmacists

Re: Draft Code of Ethics

VIII.1 The Draft Code of Ethics uses 'rights'
language, but not the 'rights' language of the
1960's, when abortion law reform was proposed. When
the National Association for the Repeal of Abortion
Laws opened its doors in the United States in 1969,
the claim that abortion was a 'right' was directed
only at the repeal of laws against the procedure, so
that women would be free to seek abortions and, as
the Globe and Mail put it, so that physicians
would be able "to perform their duties according to
their conscience and their calling."11
At that time, Canadians were repeatedly assured that
"nobody would be forcing abortion procedures on
anyone else."12

VIII.2 Current rights claims of the kind made in the
Draft Code of Ethics must be distinguished
from this early period. Contrary to early activist
promises, current rights claims are meant to force
health care workers and institutions to provide or
at least facilitate abortion, contraception,
artificial reproduction, euthanasia, assisted
suicide, post-coital interception, etc., all of
which remain morally controversial. A major 'mover
and shaker' in this project is the Center for
Reproductive Rights,13
an American advocacy group described in internal
documents as an organization "comprised largely of
economically advantaged white women."14
The Center's agenda includes, among other things,
the legal enforcement of what it describes as
inalienable sexual rights.15

VIII.3 The Center's ultimate goal is to establish
what it calls "hard norms" - treaty-based
international laws16
- that recognize access to abortion as a fundamental
human right.17
It plans to develop a "culture of enforcement" that
will compel governments to respect this 'right'18
and enforce it against third parties - pharmacists
and other health care workers.19
Even as it works toward this end, it is cultivating
"soft norms" in the form of statements by
international, regional, and intergovernmental
bodies.20
The attempt by Canadian Professor Bernard Dickens to
turn conscientious objection into a crime against
humanity illustrates how this can be done (See
Appendix "D").

VIII.4 Should the Center be successful it
acknowledges that it will have effected "profound
social change."21
It will also have destroyed almost all hope of
respect for freedom of conscience in health care.
For if refusal to facilitate abortion or other
morally controversial procedures were to become, in
law, an offence like racial discrimination,
conscientious objection would be prohibited, just as
racial discrimination is now prohibited.22

VIII.5 Special attention should be paid to key
features of the Center's strategy, notably its focus
on securing a following among social, political,
academic and professional elites.23
The medical profession is one of the "key sectors"
that figures prominently in this strategy;24
so, too, does the legal community.25
The approach is summed up in the Center's question,
"How can we influence the people who influence the
legal landscape around reproductive rights?"26

VIII.6 The courtship of the elites occurs in
academic, professional and bureaucratic communities,
largely out of the public eye, thus avoiding what
one memo calls "nasty opposition."27
This is especially important if professionals and
academics may be more sympathetic to the CRR agenda
than ordinary people.28
An internal memo values the "stealth quality to the
work," through which the Center achieves
"incremental recognition of values without a huge
amount of scrutiny from the opposition."29

VIII.7 Despite an admission that a 'right' to
abortion cannot be found in existing international
instruments, the Center and its allies argue that it
is implicit in other internationally recognized
rights, such as the right to life, liberty and
security, and rights to privacy and freedom from
discrimination.30
They hope to secure "hard norms" by having binding
treaties or protocols interpreted in this way,31
in the expectation that other adjudicators will find
such rulings persuasive.32

VIII.8 The Center's cultivation of "soft norms"
is a very similar process, but takes place not only
in adjudicative bodies but in international
conferences that produce non-binding but persuasive
opinions.33
As "soft norms" quietly accumulate, it becomes
easier for the Center to claim that they represent
an emerging consensus that should be codified in
binding "hard norms."34
The development of "soft norms" is of great moment
for freedom of conscience in health care because
they will likely have the most immediate impact on
conscientious objectors.

VIII.9 Professional associations, educational and
regulatory authorities and influential individuals
can support the CRR's work by developing "soft
norms" closer to home - like the Draft Code of
Ethics. Colleagues or academics will argue that,
at a minimum, referral for euthanasia, assisted
suicide, post-coital interception, etc. is an
expected or even legally required standard of care.
Ethicists and professional journals not infrequently
express opinions hostile to freedom of conscience,
as do individual health care practitioners.35
Among Canadian pharmacy regulators, one even
encounters unsubstantiated claims and dubious or
false statements about the actions or ethical
obligations of conscientious objectors.36

VIII.10 If such claims are repeated often enough
by influential persons - like College councillors,
law professors, or former deans of law faculties -
even if the claims are false or exaggerated - they
gradually assume the character of a new norm.
Ideally, this new norm will be implemented by the
disciplinary apparatus of self-governing professions
as a standard of care in documents like the present
Draft Code of Ethics.

VIII.11 If an objecting pharmacist is charged for
misconduct, it is quite likely that members of the
professional tribunal hearing the case will have
already been convinced of the new rights-based
standard of care, or will have been prepared to
accept the claims of experts called to testify to
it. Should they ratify it by ruling against the
objector, they will create a new "soft norm" that
the CRR and its allies can use elsewhere in their
continuing quest for international "hard norms." It
might added that the establishment or confirmation
of even a "soft" norm would be oppressive in the
jurisdiction bound by the decision.

VIII.12 Parallel litigation can also be initiated
in quasi-judicial forums, like human rights
tribunals, which, in Canada, afford complainants the
advantage of cost-free, aggressive inquisitions with
extraordinary powers.

VIII.13 Those concerned about freedom of
conscience and religion should take note of the
polemics and tendentious reasoning involved in this
project (see
Appendix "D"). In particular, even if claims of
'rights' to abortion or contraception can be
grounded in rights purportedly implicit in
international instruments, it does not follow that
they override the repeated explicit international
recognition and support for freedom of conscience
and religion.

IX.1 It has become an article of faith with many,
especially many holding public positions, that faith
has no place in public and professional life. A
convenient example is found in the dogmatic
assertion by the Ontario Human Rights Commission
(OHRC) of its belief that physicians "must
essentially 'check their personal views at the door'
in providing medical care."37
The same kind of claim has been made by some
pharmacists.38

IX.2 The blatant OHRC claim calls to mind comments
made by Dr. James Robert Brown in 2002. A professor
of science and religion of the University of
Toronto, Dr. Brown offered a simple solution for
health care workers who don't want to be involved
with things like euthanasia, assisted suicide or
post-coital interception . These "scum" - that was
his word - should "resign from medicine and find
another job." His reasoning was very simple.

Religious beliefs are highly emotional - as
is any belief that is affecting your behaviour
in society. You have no right letting your
private beliefs affect your public behaviour.39

IX.3 When Dr. Brown declared that no one should be
allowed to let private belief affect public
behaviour, he was doing precisely that. He was
acting publicly upon his private belief that
conscientious objectors in health care should not be
allowed to act publicly upon theirs. Dr. Brown did
not explain why this should be so, but others have
made the attempt.

IX.4 Religious beliefs, so the
argument goes, are unreliable and divisive because
they are unscientific, essentially 'private' and
'personal' in nature. It is said that they must be
banished from public affairs in a secular society in
the interests of social harmony, progress and, now,
human 'rights.' Proponents of this view point to
religious wars and persecutions throughout history
to justify their claims. However, considered within
a broader social and historical context that
includes the oppressive and frequently bloody
pursuit of secular objectives in the French
Revolution, Stalinist Russia and Nazi Germany, the
argument is unpersuasive. And it becomes even less
persuasive in the case of individuals.

IX.5 For example: after ten years of bloody wars,
the ancient Indian emperor Asoka became a Buddhist,
and decided that he should rule his people like a
father, with "morality and social compassion." Among
other things, he provided them with free hospitals
and veterinary clinics, and built new roads and rest
houses for travellers.40
In other words, Asoka let his private beliefs affect
his public behaviour. Like Mother Teresa of Calcutta
- who also let her private beliefs influence her
public behaviour - Asoka is still revered in India,
nicknamed "the saint."

IX.6 Moving from ancient times into the last
century, one recalls that fewer than half the
Canadians who landed at Dieppe in 1942 made it back.
The Royal Hamilton Light Infantry landed with 582
men; 365 were killed or taken prisoner.41
John Foote was honorary chaplain to the regiment.
For eight hours, repeatedly exposing himself to "an
inferno of fire," he assisted the Regimental Medical
Officer, going out to the wounded, carrying them to
shelter, and, later, carrying them on his back to
evacuation landing craft. Ultimately, he chose to
stay on the beach and be taken prisoner with those
left behind.42

IX.7 Asoka, Mother Teresa and John Foote were
religious believers, but it is false to assert that
only religious believers are motivated by belief. In
1915, at Ypres, Canadian physician Francis Scrimger
ordered the evacuation of his dressing station, but
remained behind to stabilize a wounded officer. As
shells dropped around him, demolished the building
and set it on fire, he shielded his patient with his
own body as he worked, and then carried the larger
man to safety through an artillery barrage.43
Foote, a Presbyterian minister, and Scrimger, "an
atheist by outward appearances,"44
both acted in accordance with their personal
beliefs; both were awarded the Victoria Cross.

IX.8 If one accepts the logic of Professor Brown,
Scrimger deserved the award but Foote did not,
because Foote had no business letting his religious
beliefs influence his public behaviour. On the other
hand, the stated policy of the Ontario Human Rights
Commission would deny both recognition, on the
broader grounds that both failed to 'check their
personal views at the door' when the bullets started
to fly.

IX.9 All public behaviour - how one treats other
people, how one treats animals, how one treats the
environment - is determined by what one believes.
All beliefs influence public behaviour. Some of
these beliefs are religious, some not, but all are
beliefs. That human dignity exists -or that it does
not - or that human life is worthy of unconditional
reverence - or merely conditional respect - and
notions of beneficence, justice and equality are not
the product of scientific enquiry, but rest upon
faith: upon beliefs about human nature, the meaning
and purpose of life, the existence of good and evil.

IX.10 Disputes about morality - about the
morality of contraception, assisted suicide, stem
cell research or artificial reproduction - are
always, at the core, disputes between people of
different beliefs, whether or not those beliefs are
religious. "Everyone 'believes'," writes social
critic Iain Benson. "The question is, what do we
believe in and for what reasons?"

Once we realize that everyone necessarily
operates out of some kind of faith assumptions
we stop excluding analysis of faith from public
life. We cannot simply banish "religious" faiths
from our common conversations about how we ought
to order our lives together while leaving
unexamined all those "implicit faiths" in such
areas as public education, medicine, law or
politics.45

IX.11 The implicit faith to which Benson refers
is exemplified in a statement by the Ethics
Committee of the American College of Obstetrics and
Gynecology (ACOG). "Although respect for conscience
is a value," states the Committee, "it is only a
prima facie value, which means it can and should be
overridden in the interest of other moral
obligations that outweigh it in a given
circumstance."46
The Committee's assertions about the relative
importance of freedom of conscience and about what
counts as overriding moral obligations are based on
faith-assumptions shared by Committee members. It is
implied that all reasonable people will accept those
faith-assumptions, but, in fact, many reasonable
people do not.

IX.12 The failure to acknowledge the
faith-assumptions implicit in one's own position
frequently leads to intolerance for opposing views,
and it always makes sincere, respectful and
progressive public discourse difficult. This is
particularly true of discussion of freedom of
conscience in health care.

X.1 It might be argued that Professor Brown's
declaration expressed, not just a private
conviction, but a broad public consensus, a
consensus of serious establishment thinkers or,
perhaps, a consensus reflecting "the ethics of the
profession."47

X.2 However, this kind of 'consensus' is typically
achieved by taking into account only opinions
consistent with ethical, moral or religious
presuppositions that are congenial to a dominant
elite. The resulting 'consensus' is, in reality,
simply the majority opinion of like-minded
individuals, not a genuine ethical synthesis
reflecting common ground with those who think
differently.48

X.3 More to the point, to identify beliefs as
'private' or 'personal' does not help to resolve a
question about the exercise of freedom of
conscience. The beliefs of many conscientious
objectors, while certainly personal in one sense,
are actually shared with tens of thousands, or even
hundreds of thousands or hundreds of millions of
people, living and dead, who form part of great
religious, philosophical and moral traditions. If
their beliefs are 'private,' those of Professor
Brown and the College Council are not less so.
Disputes about what counts as 'private' or 'public'
thus end in a stalemate.

X.4 The question does not turn on privacy, but
truth. If the College Council possess a moral vision
that is superior to that of objecting pharmacists,
it is clear that Council's superior moral views
ought to prevail. But, in that case, Council members
should be able and willing to explain first, why
they are better judges of morality than objecting
pharmacists, and, second, why their moral judgement
should be forced upon unwilling colleagues. Avoiding
the issue by hiding behind noble sounding phrases
like "the ethics of the profession" will not do.

XI.1 One frequently encounters references to a
"social contract" between health care professions
and society, especially in discussions about the
meaning of "professionalism."49
The Royal College of Physicians has suggested that,
in relation to medical practice, it is more accurate
to speak of a "moral contract" between society and
the profession.50
Others have argued that the concept of a
social "covenant" provides a better framework for
ethical reflection.51
In any case, pharmacists fond of contract theory
have applied it to the exercise of freedom of
conscience by their colleagues.

Pharmacy, like all professions, has been
granted a monopoly right to provide services to
the public. And professions have an obligation
to provide recognized services to the public,
because the public has no alternative. For this,
professions receive prestige and financial
reward.52

Pharmacists have been authorized by our
society to be the sole distributors of
prescription medications to Canadian citizens. .
. In exchange, society expects the pharmacist to
give reasonable service in the provision of
licensed medications to the general public. . .
Should pharmacists stand in the way of a
publicly approved treatment, the public will
have no choice but to remove the responsibility
for the provision of the treatment from
pharmacists. Would pharmacists benefit by having
the responsibility for handling Preven given to
the school or public health nurse?53

XI.2 It is important to recognize that, whether the
term of choice be contract or covenant, or the
contract be social or moral, all such notions are
convenient fictions. The Oxford Companion to
Philosophy makes the point:

Contract, social: The imaginary device
through which equally imaginary individuals,
living in solitude (or, perhaps, nuclear
families) , without government, without a stable
division of labour or dependable exchange
relations, without parties, leagues,
congregations, assemblies or associations of any
sort, come together to form a society, accepting
obligations of some minimal kind to one another,
and immediately or very soon thereafter binding
themselves to a political sovereign who can
enforce those obligations.54

XI.3 Theories of 'contract' and 'convenant' are
tools that can be usefully employed to explore
different aspects of human relationships, but they
become dangerous when they are thought to offer
adequate explanations of those relationships, or
when one moves from speculative discussion and
analysis to the enforcement of purported
obligations. It is also necessary to recall that
claims about the precise content of a contract
become especially intense when the parties involved
disagree.

XI.4 Notions of monopoly and contract do not
provide ethical principles adequate for the
discussion of freedom of conscience in pharmacy. The
exercise of fundamental freedoms should not be
determined or limited by economic and professional
self-interest.

XII.1 Socialized medicine in Canada has been and
continues to be a great benefit to many people, but
little attention has been paid to the dynamic of
expectation that arises when the state assumes
primary responsibility for the delivery of health
care. Health care providers come to be seen as state
employees, and citizens begin to believe that they
are entitled to demand from health care providers
the services they have paid for through taxes. The
President of the College of Physicians and Surgeons
of Ontario offered the following comment during a
recent controversy about freedom of conscience in
medicine:

In our society, we all pay taxes for this
medical system to receive services . . . And if
a citizen or taxpayer goes to access those
services and they are blocked from receiving
legitimate services by a physician, we don't
feel that's acceptable.55

XII.2 In this case it is argued that there is an
actual rather than theoretical social contract for
the provision of health care, and that the state and
the medical profession are parties to it. Given the
nature and complexity of health care, however, much
of the content of the virtual contract must remain
undefined, and conflicts will arise. The problem
becomes especially acute when legal but morally
controversial procedures are the focus of the
conflict.

XII.3 Citizens are likely to expect the state to
enforce what they consider to be the terms of the
contract against reluctant employees and other
health care providers through institutions like the
College of Pharmacists and human rights commissions.

XII.4 However, even if one posits the existence of a
contract, such an expectation ignores three key
points.

XII.5 First: the terms of the contract on
this issue have never been defined or settled. It is
a matter of fact that, in assisting in the birth of
medicare, health care professions did not agree that
their members would, from that point, deliver every
service demanded by the public, regardless of their
conscientious convictions. The state, a party to the
contract, can ask that it be re-negotiated, but
cannot unilaterally demand that the profession "read
in" non-existent provisions.

XII.6 Second: when abortion was legalized in
1969, repeated assurances were given that health
care workers would not be forced to participate in
the procedure.56
In fact, the government of the day rejected a
protection of conscience amendment to the bill on
the grounds that it was not necessary.57
Subsequent coercion experienced by health care
workers and present attempts to force objectors to
become involved with the procedure suggest that the
promises made when abortion was legalized were less
than sincere. Continuing the analogy of contract for
the purpose of the discussion, agreements obtained
by fraud are not binding.

XII.7 Third: even if pharmacists have become de
facto employees of the state since the introduction
of public health care, it does not follow that they
cannot exercise freedom of conscience and religion.
On the contrary: as employees of a "service
industry," they are entitled to the same
accommodation of freedom of conscience and religion
available to employees of other service industries.

XII.8 The standard is that they must be
accommodated to the point of undue hardship.58
Given the enormous resources available to their
employer - the state - it is difficult to imagine
under what circumstances it might experience "undue
hardship" in the delivery of health care. Not
incidentally, pharmacists are also entitled to
demand that the state ensure that their workplace
environments are not poisoned against them by state
institutions - like human rights commissions.

XIII.1 Moving from imaginary devices to legal
argument, some writers assert that the fiduciary
duties of health care professionals requires them to
subordinate their conscientious convictions to those
of their patients. Professors R.J. Cook and B.M.
Dickens have made this claim,59
citing the Supreme Court of Canada case, McInerney v. MacDonald.60

XIII.2 However, McInerney had absolutely
nothing to do with conflicts of conscience. It
concerned the duty of a physician to release a
patient's medical records to her upon request, and
the nature of fiduciary relationships was not
discussed at length. Moreover, the Court ruled that
fiduciary relationships and obligations are "shaped
by the demands of the situation"; they are not
governed by a "fixed set of rules and principles."
Mr. Justice La Forest, writing for the court,
stated, "A physician-patient relationship may
properly be described as 'fiduciary' for some
purposes, but not for others."61
In other words, that the relationship between a
health care professional and patient is fiduciary
for the purpose of disclosing patient records does
not imply that it is fiduciary for the purpose of
suppressing the conscientious convictions of a
pharmacist.

XIII.3 Finally, the court in McInerney
accepted the characterization of the
physician-patient relationship as "the same . . . as
that which exists in equity between a parent and his
child, a man and his wife, an attorney and his
client, a confessor and his penitent, and a guardian
and his ward."62
Pursuing the analogy, no one has ever suggested that
the fiduciary obligations of parents, husbands,
attorneys, confessors, and guardians require them to
sacrifice their own integrity to the "desires" of
others. McInerney does not even remotely
imply that pharmacists have such a duty.

XIV.1 Professors Cook and Dickens claim that the
Alberta case of Zimmer vs. Ringrose is
authority for the proposition that failure to refer
for abortion approximates patient abandonment:

[T]he "failure to provide adequate follow-up
care" . . . consisted in the defendant
physician's failure to refer his patient
to another physician who could facilitate the
abortion she wanted. The Court found that
this failure was negligence close to abandonment
. . . a wilful failure or refusal to refer . . .
may justify an award of aggravated or exemplary
damages. (emphasis added)63

Dickens cites Zimmer to the same effect in
Canadian Health Law and Policy (2nd Ed.).64

XIV.2 Though they refer elsewhere to "historical
background jurisprudence" to support their
understanding of the case, Cook and Dickens cited
none. Moreover, the rulings followed and referred to
by the Court of Appeal in Zimmer were about
informed consent, not freedom of conscience.65

XIV.3 The only relevant "historical background
jurisprudence" appears to be the earlier decision of
the trial court in Zimmer, and this does not
assist Cook and Dickens. The failure to provide
adequate follow-up care had two elements - not one,
as the authors imply. The first was the physician's
failure "to follow his patient's progress by
conducting regular medical examinations during the
summer of 1973," an omission the trial judge found
to be "inconsistent with good clinical practice"
that contributed to the fact that her pregnancy was
not detected earlier.66

XIV.4 The second element was not the "failure to
refer" alleged by the authors; the physician did not
refuse or fail to refer the patient for abortion. In
fact, she understood from him that she should have
an abortion as soon as possible.67
Nor was the issue a refusal to refer "for the
abortion she wanted" (emphasis added). It was,
rather, his decision to refer the woman for an
abortion in Seattle rather than Edmonton. He
testified that he advised her to get an abortion in
Seattle to avoid the delay involved in Edmonton,
where, he said, it was then necessary to obtain a
psychiatric report to justify the procedure. He also
believed that the suction procedure used in Seattle
would be less traumatic for the patient than the
saline method employed in Edmonton.68

XIV.5 The key fact noticed by the Court in ruling
against the physician was that he "made no attempt
to secure an abortion for the respondent in a
hospital in Edmonton" (by, for example, referring
her to a colleague) and thus failed "to display the
degree of care and concern dictated by the
situation."69

XIV.6 The trial judge had noted the same thing,
and was sceptical of the physician's evidence:

I cannot find that the [physician] made any
effort to get medical and hospital care in
Edmonton for the abortion and in this respect
his attitude appears to have been casual. He
failed to do everything he could for the welfare
of his patient, and I cannot accept as true his
statement to Mrs. Zimmer that she would have to
be declared mentally unsound before she could be
admitted to hospital in Edmonton for an abortion
. . . At least. . . he should have consulted
another gynaecologist in Edmonton before
suggesting that she go to Seattle.70

XIV.7 In other words, having told the patient
that she should get an abortion as soon as possible,
he was expected to at least attempt to secure an
abortion for the patient in Edmonton at the earliest
opportunity. Rather than making such an attempt, he
based his advice to go to Seattle on an untested
assumption about the availability of the procedure.
The patient took his advice and went to Seattle, but
she was found to be too far along for suction. A
saline abortion was performed, and "Mrs. Zimmer was
left to abort in a hotel room, unattended by medical
personnel." Thus,

[T]he respondent underwent a more painful and
emotionally distressing experience than was
necessary in the circumstances. Her suffering
would have been substantially reduced if the
appellant had discharged his duty by arranging
hospital care.71

XIV.8 Concluding the review of Zimmer, one
can argue that a physician or pharmacist who
urgently recommends a drug or procedure to a patient
has a duty to do all that he reasonably can to help
the patient obtain it, but Zimmer does not speak to
a case in which a physician or pharmacist, for
reasons of conscience, refuses to recommend a drug
or procedure at all.

XV.1 It is also said that health care workers cannot
refuse to provide any legal procedure, as if the
legality of the procedure were sufficient to impose
a duty to provide it upon either the profession as a
whole or individual pharmacists.

XV.2 If this were a valid argument, it ought to
apply to all other legal procedures. It can be shown
that this is not the case.

XV.3 Sex selective abortion: There is no law
against sex-selective abortion in Canada, nor
against determining the sex of an infant before
birth. Nonetheless, the Deputy Registrar of the
College of Physicians and Surgeons of British
Columbia was horrified in August, 2005, when he
learned that a pre-natal gender testing kit was
being marketed on the internet. Dr. T. Peter Seland,
described gender selection as "immoral." He
explained that College policy was not to disclose
the sex of a baby until after 24 weeks gestation in
order to reduce the risk of gender selection, and
that physicians violating the policy were liable to
be disciplined by the College.72
This clearly indicates that the legality of a
procedure is not reason enough to compel a health
care worker to provide it.

XV.4 Amputation:In 1999, Dr. Robert Smith of Scotland
performed single leg amputations on two patients who
desired the amputation of healthy limbs. The surgery
was performed with the permission of the Medical
Director and Chief Executive of the hospital, in a
National Health Service operating theatre with NHS
personnel, after consultation with the General
Medical Council and professional bodies.73
The procedures were legal and even deemed ethical by
regulatory authorities, but, to date, no one has
argued that this is sufficient reason to oblige
surgeons to amputate healthy limbs upon request, and
to compel physicians to refer for such surgery.

XV.5 Execution:Capital
punishment is legal in a number of jurisdictions. 35
of the 38 American states that use lethal injection
as a means of execution permit the participation of
physicians, and 17 of them require it. "Thirteen
jurors, citizens of the state, have made a
decision," explained one physician who assists with
executions. "And if I live in that state and that's
the law, then I would see it as being an obligation
to be available."74
The law is the law, after all. However, despite the
legality of the procedure, and in defiance of the
laws that actually require the attendance of
physicians, the Code of Ethics of the
American Medical Association forbids the
participation of physicians in executions,75
and those who ignore the ban risk losing their
licenses to practise.76
In the face of a pending decision of the American
Supreme Court, a guest editorial commented on the
obvious conflict between the expectations of the law
and the attitude of physicians:

In their fuller examination of Baze v.
Rees, the justices should not presume that
the medical profession will be available to
assist in the taking of human lives . . .The
future of capital punishment in the United
States will be up to the justices, but the
involvement of physicians in executions will be
up to the medical profession.77

XVI.2 In cases of conscientious objection their
interests cannot be balanced because they are not
commensurable; they concern fundamentally different
goods. A patient wants a particular product or
service, but the pharmacist wishes to avoid
complicity in wrongdoing and live and work according
to his conscientious convictions. With sufficient
imagination and political will one may find a way to
accommodate the interests of both, but to compel the
pharmacist to do what he believes to be wrong does
not achieve 'balance' but effects his subordination.

XVII.1 It is argued that there are limits to the
exercise of freedom of conscience and religion, and
that it is 'appropriate' to limit a pharmacist's
freedom by requiring referral.

XVII.2 It has been
suggested that this approach is justified, at least
in the case of physicians, by Personal Beliefs and
Medical Practice, a policy document produced by
Britain's General Medical Council.78
Paragraph 21 of that document asserts that an
objecting physician must provide a patient with
contact information for a colleague who will provide
the controversial procedure. It also directs the
reader to the relevant passage in an earlier
publication, Good Medical Practice (2006),which
advises physicians that if they have declined to
provide a procedure and advised a patient of his
right to see another doctor, they must "ensure that
arrangements are made for another suitably qualified
colleague to take over" if it is not practical for
the patient to do so.79

XVII.3 Similarly, the Royal Pharmaceutical
Society of Great Britain, states that objecting
pharmacists must refer patients "for the service
they require."80

XVII.4 The CMA approved Joint Statement on
Preventing and Resolving Ethical Conflicts Involving
Health Care Providers and Persons Receiving Care81
is to be preferred to GMC documents on this issue.

XVII.5 Neither the GMC nor RPhSGB documents appear
to have taken into account evidence taken in 2004
and 2005 by the British House of Lords Select
Committee on Assisted Dying for the Terminally Ill,
and the conclusions of the Committee. The bill, in
its original form, included a requirement that
objecting physicians refer patients for euthanasia.
Numerous submissions protested this provision
because it made objecting physicians a moral party
to the procedure,82
and the Joint Committee on Human Rights concluded
that the demand was probably a violation of the European Convention on Human Rights.83
The bill's sponsor, Lord Joffe, promised to delete
the provision in his next draft of the bill.84

XVII.6 Consistent with the findings of the Joint
Committee on Human Rights, the General Medical
Council ruled late last year that a general
practitioner who refused demands to refer patients
for abortion and prescribe post-coital interceptives
was not acting improperly.85
It is by no means certain that the RPhSGB policy on
referral would withstand a legal challenge.

XVII.7 Return to the notion that there are limits
to the exercise of freedom of conscience and
religion; that, as the Supreme Court put it, "the
freedom to hold beliefs is broader than the freedom
to act on them."86
This is hardly a new proposition. Oliver Cromwell
said as much 400 years ago.

As for the People [of Ireland], what thoughts
they have in matters of Religion in their own
breasts I cannot reach; but shall think it my
duty, if they walk honestly and peaceably, Not
to cause them in the least to suffer for the
same. And shall endeavour to walk patiently and
in love towards them to see if at any time it
shall please God to give them another or a
better mind. And all men under the power of
England, within this Dominion, are hereby
required and enjoined strictly and religiously
to do the same.87

But to act upon religious belief was, for
Cromwell, another matter.

. . . I shall not, where I have the power,
and the Lord is pleased to bless me, suffer the
exercise of the Mass . . . nor . . . suffer you
that are Papists, where I can find you seducing
the People, or by any overt act violating the
Laws established; but if you come into my hands,
I shall cause to be inflicted the punishments
appointed by the Laws.88

XVII.8 Cromwell, the Supreme Court of Canada and
the Ontario Human Rights Commission all agree that
the freedom to act on beliefs is less extensive than
the freedom to hold them. So, for that matter, do
those who support freedom of conscience in health
care. The principle is not in dispute. What is in
dispute is where the line between belief and
expression is to be drawn, and what is to be done
with those who cross it. The Irish did not share
Cromwell's views about where the line should be
drawn, nor is it clear that there is anything
approaching a consensus in Canada on this point. So
it is instructive to remember Oliver Cromwell and
the Irish when social and political elites begin to
sound like the Lord Protector.

XVII.9 The statement that mandatory referral can
be justified as a kind of limit to freedom amounts
to this: that a pharmacist is free to refuse to
actually perform a procedure that he believes is
wrong, but can be compelled to do what some other
person believes is a lesser wrong, or what some
other person thinks is not "really" a wrong at all.
In short, the pharmacist is to be compelled to
practise according to the conscientious convictions
of someone else, to serve ends chosen by someone
else even if he finds them abhorrent. This is a form
of servitude, not service.